578 F2d 259 United States v. Corbin Farm Service

578 F.2d 259

12 ERC 1310, 8 Envtl. L. Rep. 20,615

UNITED STATES of America, Plaintiff-Appellant,
CORBIN FARM SERVICE, Patrick William Feeney, Frank Harry
Michaud, Jr., and John Richard Harris, Defendants-Appellees.

No. 78-1286.

United States Court of Appeals,
Ninth Circuit.

July 12, 1978.

Richard W. Nichols, Chief Asst. U. S. Atty., Sacramento, Cal., for plaintiff-appellant.

Donald Cole Byrd (argued), Willows, Cal., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of California.

Before BROWNING, CARTER and ANDERSON, Circuit Judges.


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This is an appeal by the United States from a judgment of the district court dismissing nine counts of an information filed against defendants for multiplicity. The sole issue is whether the proper unit of prosecution for the killing of ducks under the Migratory Bird Treaty Act (MBTA), 16 U.S.C. §§ 703 et seq., is each duck killed. The district court ruled that multiple bird deaths resulting from a single transaction cannot be separately charged under the MBTA. We affirm.


The defendants were each involved in various capacities with the application of Furadan 4, a registered pesticide, to an alfalfa field which allegedly caused the death of more than 1,000 American Wigeons, a migratory duck. Corbin Farm Service is the dealer/distributor of the Furadan. John Richard Harris is an employee of Corbin who provided pesticide advice to farmers with the expectation that they would purchase from Corbin. Patrick W. Feeney is the owner of the alfalfa field which was sprayed. Frank H. Michaud, Jr., is the licensed aerial operator who sprayed the field.


The United States, contending it has prosecutorial discretion to charge a violation of the MBTA for each individual duck killed chose ten Wigeons and charged Feeney, Michaud and Harris with their deaths in ten separate counts of a twelve count information. The remaining two counts alleged violations of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq., but are unrelated to this appeal.


The defendants filed numerous pretrial motions seeking, inter alia, dismissal of nine of the ten MBTA counts for multiplicity. After extensive briefing the district court filed a lengthy opinion disposing of each of the motions. We affirm the district court and adopt its opinion on the issue of multiplicity as our own. The relevant part of the district court's opinion can be found at United States v. Corbin Farm Service, et al., 444 F.Supp. 510, 527-31 (E.D.Cal.1978) (We adopt the district court's decision beginning with "(1) Multiplicity" at the top of 444 F.Supp. 527 and continuing through the first full paragraph of the second column at 444 F.Supp. 531, ending with the sentence: "Accordingly, nine of the ten counts brought against defendants Harris, Feeney and Michaud under the MBTA are dismissed.").